Injured scooter riders line up to sue Bird and Lime, but 'user agreements' could shield companies

Eduardo Contreras / The San Diego Union-Tribune

All large number of rental scooters are parked near the Convention Center along 5th Ave. in San Diego. A law firm in Southern California has spearheaded a class action lawsuit aimed at scooter companies Lime and Bird, claiming the devices are unsafe for use in urban environments.

All large number of rental scooters are parked near the Convention Center along 5th Ave. in San Diego. A law firm in Southern California has spearheaded a class action lawsuit aimed at scooter companies Lime and Bird, claiming the devices are unsafe for use in urban environments. (Eduardo Contreras / The San Diego Union-Tribune)

Pat Brogan had already picked up considerable speed on a Lime scooter riding downhill on Laurel Street when she said she realized the brakes weren’t working.

“I thought I was going to die for sure,” said the 63-year-old Bay Area resident who was visiting family in San Diego.

Approaching a red light at a busy intersection, she said she laid the scooter down to avoid riding into traffic, skidding for about ten feet before coming to a stop.

The crash broke two bones in her right hand, which required surgery, fractured a knuckle and badly bruised up her leg. The incident, which happened in August, set her back roughly $8,000 in out-of-pocket medical expenses.

“They publish that the (scooter’s) max speed is 15 miles an hour, but that has nothing to do with a hill,” she said. “Now I don’t have the full use of either hand.”

Brogan is one of a growing number of people looking to hold scooter companies, such as Bird and Lime, legally responsible for injuries involving their electric devices.

I thought I was going to die for sure.— Pat Brogan, 63, injured while riding a Lime scooter

Her attorney Catherine Lerer with McGee, Lerer & Associates filed a class action lawsuit against the scooter companies Lime and Bird last month alleging, among other things, “products liability and gross negligence, as well as aiding and abetting assault.”

“They’re not street worthy,” Lerer said. “They’re not safe for their intended purpose.”

The lawsuit, filed in Los Angeles Superior Court, seeks damages on behalf of nine plaintiffs, including pedestrians hit by scooter riders. The suit alleges even scooters that aren’t malfunctioning are not properly designed for urban landscapes and too easily get out of control.

Brogan, however, isn’t part of that lawsuit. Hers is one of another two dozen cases the law firm is now pursuing separately based largely on malfunctions from failed brakes to stuck throttles.

One client Vicky Leptien said she had to jump off a scooter after the vehicle started speeding out of control in Balboa Park. “I had a choice of getting hit by a car or jumping,” said the 58-year-old. “I did a tuck and roll and broke my arm. I had to have a plate and screws.”

Scooter companies Lime, Bird and Razor declined interviews for this story, including questions about how frequently their scooters are maintained and the qualifications of their mechanics.

Lime recently recalled 2,000 scooters from San Diego, Los Angeles and Lake Tahoe due to concerns about exploding batteries.

In response to the Union-Tribune’s inquiry, Bird released a statement that read in part: "At Bird, safety is our very top priority, and it drives our mission to get cars off the road to make cities safer and more livable. Bird is committed to partnering with San Diego to ensure that the community, and its visitors, safely use our affordable, environmentally friendly transportation option.”

Since start-up scooter companies first deployed thousands of so-called dockless rental scooters in Southern California about a year ago, injuries have been mounting across the country.

Public health officials have raised concerns in recent months as riders of the electric vehicles continue to crash into pedestrians, potholes and cars, often with serious consequences — including a handful of deaths.

K.C. Alfred / San Diego Union-Tribune

Bird Scooter riders navigate the boardwalk in Pacific Beach on June 13, 2018.

So far scooter companies such as Lime and Bird — now valued in the billions — have avoided having to take legal responsibility for such accidents.

That’s largely because scooter companies require riders to agree to a lengthy legal contract through their smart-phone apps before renting a device.

“I’m familiar with the waiver and that waiver is pretty extensive,” said Mike Bomberger, a personal injury attorney with the San Diego-based Estey & Bomberger. “Unless the scooter itself malfunctions you have a difficult case against the dockless scooter companies.”

Lerer said that she initially was turning down scooter injury cases because the user agreements so thoroughly limit legal liability for the scooter companies.

“I think attorneys are reluctant to take these cases,” she said. “I was too, but the calls are just never ending, and they’re heartbreaking. Someone’s got to go against these companies.”

Shortly after she filed the class-action lawsuit, both Lime and Bird updated their user agreements. For example, Lime’s now includes this wording: “Important notice: This agreement is subject to binding arbitration and a waiver of class action rights …”

At the same time, several lawsuits have been filed in San Diego Superior Court against Bird, including one in the past few weeks that also named the city of San Diego as a defendant.

“I think attorneys are reluctant to take these cases I was too, but the calls are just never ending, and they’re heartbreaking.— Catherine Lerer, public injury attorney with McGee, Lerer & Associates

City Attorney Mara Elliot’s office — which has been tasked with drafting rules to indemnify the city from liability in scooter accidents — declined several interview requests for this story.

After months of public outcry, the city recently announced it would draft rules for scooter companies, including limiting speeds in specific areas. Draft regulations are expected in early 2019.

Local attorneys said that scooter riders could file a claim against the city if they are injured as a result of poorly maintained streets. However, some personal injury lawyers noted that pedestrians may also have a case if they trip over one of the thousands of scooters that now cover downtown San Diego.

If a pedestrian is hit by a someone on a scooter, the rider’s homeowner or rental insurance can in many cases cover the injured person.

According to a public records disclosure no claims have been filed against the city involving dockless scooters as of early September. City officials declined to provide any further details.

Beyond the onerous user agreements, many lawyers agreed, cases against scooter companies could be hard to prove. The scooters are often left at the scene, meaning there’s no physical evidence of a scooter being defective.

And most notably, a plaintiff would likely have to prove that the injury was the result of scooter and not user error — even if the device malfunctioned.

“I think it’s going to be pretty simple that they’re inherently dangerous and there’s a design defect, but the fight will be on was that a substantial factor in the harm,” said attorney Jim Brown of the San Diego-based JB Law.

However, if a class-action lawsuit goes to a jury trial it could “devastate” the industry, he said. “The big analysis is going to depend on the public view of this.”

Jeffery Lee Costell with Costell & Cornelius Law Corporation, who has teamed up with Lerer to file the class action suit in Los Angeles, said their goal is not to shut down the scooter industry.

“We’re not trying to stamp out scooters and presume whether we know if they have a place in the urban landscape,” he said. “We just want to make them safer.”

Jarrett Charo, a personal injury lawyer with Thorsnes Bartolotta McGuire, said he thinks some of the cases could eventually prove successful despite the tightly written user agreements.

“Generally, there’s a trend in the courts that realizes these terms of service are overreaching and is becoming less receptive to validating them,” he said.

However, he said his office has yet to take up a case, largely because of the legal hurdles created by the waivers.

“We looked at a potential class action and reviewed their terms of service,” he said. “Their terms of service are onerous.”